The Republican/MassLive.com has published an excellent two-part series about the Massachusetts wiretapping statute (see here and here), which is frequently misunderstood. Under the law, it is a felony to secretly audio-record someone else's voice regardless of who that person is or where the recording is made. The law has led to a number of cases of people being arrested for recording on-duty police officers.
I was interviewed for this series, but none of my comments made it in, so I wanted to add a few of my thought to the discussion.

For the second article in series, The Republican interviewed Michael Hyde who unsuccessfully challenged the wiretapping law more than a decade ago.

Michael Hyde was 28 years old when the traffic stop made him a household name in wiretap law. He had long hair and a loud sports car. He was in a band.

Hyde was driving his white Porsche on Oct. 28, 1998, in Abington with his friend Daniel Hartesty in the passenger seat. An Abington police officer pulled him over around 10:30 p.m. because of the car’s loud exhaust and an unlit license plate.

Three more officers arrived. Hyde and Hartesty were ordered out of the car and Hartesty was frisked. An officer reached into the car to search a plastic bag on the floor. It was just full of CDs.

Things unraveled quickly.

Hyde said the stop was “a bunch of bulls---.” One officer called him an a--hole. An officer asked if he had any “blow.” Hyde was riled up. The stop had gone “so sour,” an officer later testified.

Hyde and Hartesty were allowed to leave and weren’t cited for anything. The whole encounter took about 15-20 minutes, and it could have ended there.

Fifteen years later, Hyde still thinks of the stop and the trouble that followed.

Hyde had a tape recorder in his car that night, and when he was pulled over, he hit record. He didn’t tell officers he was recording and the recorder wasn’t conspicuous. Right then, he had committed an unlawful wiretap under Massachusetts statute.

The next week, he brought the recording into the Abington police station to complain. He was charged with a violation of wiretap statute — a charge that can carry up to three years in prison.

He was convicted and his appeal went to the Supreme Judicial Court of Massachusetts. The 2001 decision upheld his conviction and made it clear for future cases: secret recording by civilians — no matter the place or the person recorded — is illegal in Massachusetts.

Hyde wasn’t sent to prison. He received two years probation for the wiretap charge.

He’s in his forties now with a wife and a child. He wasn’t an activist in 1998 and had no interest in surveillance or wiretapping, but now he watches wiretap cases closely.

“Once it happens to you,” Hyde said, “then you’re involved.”

He said police use the statute to charge people who cross them, but do not charge people in other situations.

“The wiretap statute is being used as a weapon to protect certain people,” Hyde said.

The preamble to the wiretapping statute says that secretly audio-recording conversations must be outlawed because the "uncontrolled development and unrestricted use of modern electronic surveillance devices pose grave dangers to the privacy of all citizens of the commonwealth."

But it's hard to see what privacy interests are at stake when someone records a traffic stop like Hyde did.

Traffic stops occur on public streets. The police officers who conduct them are public employees whose salaries are paid with tax money. The things said at traffic stops may be quoted in police reports. They may be testified about in court, where anyone who shows up could overhear them. Court hearings can even be broadcast on TV in Massachusetts.

There's really nothing private at all about what goes on during a traffic stop, so it doesn't really make sense to say that a police officer's privacy is violated if someone records them during a traffic stop.

In other states, this isn't an issue because wiretapping laws only apply to conversations where there is an expectation of privacy. That means recording a traffic stop or recording a police officer while standing in a public place is legal even if done secretly.

Secret recording vs. Open recording

Michael Hyde's Supreme Judicial Court case set the precedent that the wiretapping law can be used to prosecute people for secretly recording police, but the ruling also made it clear that it's legal to record the police openly. Some people have the misconception that the law makes it illegal to record people without their consent, but the ruling in the Hyde case clears this up.

As the SJC explained in their ruling, Hyde's conviction could have been avoided "if, at the outset of the traffic stop, [he] had simply informed the police of his intention to tape record the encounter, or even held the tape recorder in plain sight. Had he done so, his recording would not have been secret, and so would not have violated [the wiretapping statute]."

Despite this clear precedent, police have arrested and charged people with wiretapping for openly recording. In fact, the Boston Police Department's official stance was that police could arrest people for recording them without their consent until 2010 – nearly a decade after the Hyde ruling.

During this period, a number of people were arrested by Boston police on spurious wiretapping charges, with Simon Glik probably being the most famous case. Glik was arrested in 2007 for recording three Boston officers make an arrest on the Boston Common. Glik sued the Boston police and was ultimately given a $170,000 settlement in 2012 after a federal appeals court ruled that he had a well-established, First Amendment right to record the police.

And even though the Boston police reversed their policy and settled Glik's suit (as well as a lawsuit from Maury Paulino, another man arrested for recording police), they still haven't stopped abusing the wiretapping law. Last year, Boston police arrested a Northeastern student for disorderly conduct and wiretapping after he recorded them during the celebration after the Red Sox won the World Series.

Police will probably continue to misapply the wiretapping law until they face real accountability for doing so. I've never heard of a Massachusetts police officer being fired for arresting someone on a trumped-up wiretapping charge. When the Boston police reversed their stance on the wiretapping law, they said the officers would "face discipline ranging from an oral reprimand to suspension."

In the George Thompson case, which The Bay State Examiner has been reporting extensively on, the Fall River police chief actually told WPRI that he supported an officer's decision to arrest Thompson for recording. After the prosecutor dropped the charges, the police chief never publicly admitted that he was wrong and the officer who made the arrest was not punished at all.

District attorneys aren't prosecuting the police who make these sorts of false arrests either. I have yet to hear of a case where a district attorney even considered prosecuting a Massachusetts police officer for falsely arresting someone under the wiretapping statute.

There have been some legal settlements – like Glik's – but the money awarded to the victims comes from taxpayers, not the officers who were responsible, so there's no reason to think this will change how the police behave.

Police won't stop arresting people for video-recording until they face serious repercussions for doing so.

The future of the wiretapping law

While openly recording police is a great way to ensure police are held accountable, there are reasons a person might want to record an encounter with the police without their knowledge.

For instance, if a driver is pulled over, they might worry that they're more likely to get a ticket if they tell the police they're being recorded. In cases where police are being extremely aggressive, people might worry that their camera could be taken from them or destroyed if the police know they're being recorded.

The Hyde case shows that the state's wiretapping law, rather than protecting privacy, shields police from accountability when they engage in misconduct. Hyde attempted to make a complaint and got convicted of a felony for his efforts.

As Hyde put it in his interview with The Republican:

“(Government is) taking more and more rights away from us, while ensnarling themselves further into privacy issues,” Hyde said.

The law is out of balance, he said, and it restricts how citizens can protect themselves while it shields police.

“Drunk driving isn’t a felony,” Hyde said. “Assault and battery isn’t a felony. But recording the cops is a felony?”

The law, which was passed decades ago, also seems out of touch with current technology. As long as the law is in place, there's the danger that people who don't understand the law could break it without even meaning to and wind up as convicted felons. That seems to be what happened to Hyde, and his case happened before smartphones with built-in cameras became a ubiquitous aspect of daily life.

Simon Glik's case established that there is a First Amendment right to record the police. But as Carlton Williams, an attorney with the American Civil Liberties Union of Massachusetts, told me earlier this year, the ruling leaves it ambiguous as to whether secretly recording the police is protected.

It's possible that the law could be ruled unconstitutional if someone challenges it. While Hyde's challenge to the SJC failed, the law could still be struck down in federal court if someone is willing to challenge it.